Moreland v. Commissioner Social Security Administration
Filing
24
OPINION AND ORDER. For the above reasons, the Commissioner's decision is affirmed and this matter is dismissed. IT IS SO ORDERED. Signed on 11/20/2012 by Judge James A. Redden. (pvh)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CLAUDIETTE H. MORELAND,
3:11-CV- 01528 RE
OPINION AND ORDER
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
REDDEN, Judge:
Plaintiff Claudiette Moreland ("Moreland") brings this action to obtain judicial review of
a final decision of the Commissioner of the Social Security Administration ("Commissioner")
denying her claim for Supplemental Security Income ("SSI") benefits. For the reasons set forth
below, the decision of the Commissioner is affirmed and this matter is dismissed.
BACKGROUND
Bom in 1957, Moreland obtained her OED, and has no past relevant work. In June 2009,
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Moreland filed an application for SSI benefits, alleging disability since August 1, 2000, due to
asthma, bronchitis, 'knees,' migraine headaches, and sleep apnea. Tr 142. Her application was
denied initially and upon reconsideration. After a May 2011 hearing, an Administrative Law
Judge ("ALJ") found her not disabled in an opinion issued in June 2011. Moreland's request for
review was denied, making the ALJ's decision the final decision of the Commissioner.
ALJ'S DECISION
The ALJ found Moreland had the medically determinable severe impahments of asthma,
headaches, depression, adjustment disorder, and osteoarthritis of the right knee. Tr. 15.
The ALJ determined that Moreland retained the residual functional capacity ("RFC") to
perfmm a reduced range of light work. Tr. 17-20.
The ALJ found that Moreland had no past relevant work, but relying on the testimony of
a vocational expert ("VE") found that there were jobs that Moreland could perfmm. Tr. 20-21.
The medical records accurately set out Moreland's medical history as it relates to her
claim for benefits. The court has carefully reviewed the extensive medical record, and the patties
are familiar with it. Accordingly, the details of those medical records will be set out below only
as they are relevant to the issues before the com1.
DISCUSSION
Moreland contends that the ALJ ened by: (1) finding her not fully credible; (2)
improperly weighing the testimony of health practitioners; and (3) presenting an inaccurate
hypothetical question to the Vocational Expert ("VE").
I. Credibility
The ALJ is responsible for determining credibility, resolving conflicts in medical
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testimony, and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9'h Cir 1995).
However, the ALJ's findings must be supported by specific, cogent reasons. Reddick v. Chafer,
157 F.3d 715, 722 (9'h Cir 1998). Unless there is affirmative evidence showing that the claimant
is malingering, the Commissioner's reason for rejecting the claimant's testimony must be "clear
and convincing." !d. The ALJ must identify what testimony is not credible and what evidence
undetmines the claimant's complaints. !d. The evidence upon which the ALJ relies must be
substantial. Reddick, 157 F.3d at 724. See also Holohan v. }dassinari, 246 F.3d 1195, 1208 (9'h
Cir 2001 ). General findings (e.g., "record in general" indicates improvement) are an insufficient
basis to support an adverse credibility determination. Reddick at 722. See also Holohan, 246
F.3d at 1208. The ALJ must make a credibility determination with findings sufficiently specific
to permit the court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.
Thomas v. Barnhart, 278 F.3d 947, 958 (9'h Cir 2002).
In deciding whether to accept a claimant's subjective symptom testimony, "an ALJ must
perf01m two stages of analysis: the Cotton analysis and an analysis of the credibility of the
claimant's testimony regarding the severity of her symptoms." [Footnote omitted.] Smolen v.
Chater, 80 F.3d 1273, 1281 (9'h Cir 1996).
Under the Cotton test, a claimant who alleges disability based on subjective
symptoms "must produce objective medical evidence of an underlying
impahment which could reasonably be expected to produce the pain or other
symptoms alleged .... " Bunnell, 947 F.2d at 344 (quoting 42 U.S.C. § 423
(d)(S)(A) (1988)); Cotton, 799 F.2d at 1407-08. The Cotton test imposes
only two requirements on the claimant: (1) she must produce objective
medical evidence of an impairment or impairments; and (2) she must
show that the impahment or combination of impairments could
reasonably be expected to (not that it did in fact) produce some degree
of symptom.
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I
Smolen, 80 F.3d at 1282.
Moreland testified that she is unable to work because:
My asthma is bothering me a lot and then it's like I can't walk
too far, you know, I've been having problems, mental problems
lately. These migraine headaches really bad where I have to be in
the dark with no light and I can't lift things too, you know, my.
back has been bothering me. Just different little things like that.
I just can't sit long. No more than an hour, maybe an hour and a
half or standing-,-! can't stand too long, you know ....
Tr. 32.
Morland testified that her mental problems began before 2007, and that she forgets things.
Tr. 33. The back pain started two to two and a half years ago, and the migraines got bad in the
last six years. She has migraines four to five times a month, and the medication "is not really
helping .... " !d. Moreland testified that her asthma is triggered by perfumes, bleaches, and
cleaning agents.
Moreland watches her eight grandchildren, ranging in age from two to 14, though many
of them are old enough to take care of themselves. Tr. 40. She loses her train of thought. Tr. 43.
Moreland thinks that she has mihritis in her hands, and it takes a little while to pick things up.
Tr. 45. She has had her right knee replaced, and testified that she may have to have the left knee
replaced. Tr. 46. She does not do much socializing. Tr. 50.
Moreland testified that she can sit for no more than two hours before she has to change
position. Tr. 51. She can stand for no longer than an hour. Tr. 52. Moreland sees Katrina
McAlexander, N.P., once or twice a month for mental health counseling. !d.
The ALJ found that Moreland's allegations as to the intensity, persistence and limiting
effects of her symptoms not credible to the extent that they are inconsistent with the RFC. Tr.
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18. The ALJ stated:
Although the claimant described daily activities which were fairly
limited, allegedly limited daily activities cannot be objectively verified
with any reasonable degree of cmiainty. Even if the claimant's daily
activities are truly as limited as alleged, it is difficult to attribute that
degree of limitation to the claimant's medical condition, as opposed to
other reasons, in view of the relatively weak evidence and other factors
.... For example, the claimant testified that she helps supervise her eight
grandchildren. The claimant rep011ed that she does not have time for
hobbies. She did not describe a physical or mental inability to perform
hobbies.
!d.
The ALJ stated that the claimant's work hist01y raises questions about her credibility.
Moreland testified that she has always worked, primarily as a self-employed babysitter until
2001, but her earnings record shows a minimal amount of work. The ALJ noted that the sparse
work hist01y suggests either a lack of motivation or a failure to report earnings. This is a specific
and legitimate reason to find Moreland not fully credible.
The ALJ cited Moreland's function rep011, in which she rep011ed that she prepares meals,
watches television, shops, does laundry and ironing, and goes for walks. Tr. 16, 166-68.
Moreland testified that she cooks simple meals and occasionally goes to church on Sundays. Tr.
46. Moreland's daily activities contradict her claim that her impahments are disabling.
Finally, the ALJ found that Moreland's complaints were inconsistent with the medical
evidence. Moreland's asthma is generally well controlled. Tr. 197. Moreland went to the
emergency room in November 2009 for a cough because she could not find her home nebulizer.
She received one nebulizer treatment, and had clear lungs with no wheezing. Tr. 263. A chest xray was normal.
As to her knees, Moreland had her right knee replaced in August 2007. Tr. 203. One
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year later, an x-ray showed good fixation and alignment. Tr. 213. Moreland complained of left
knee pain in August 2008, but an x-ray was normal. Tr. 212. She was referred to the Legacy
Bone & Joint Clinic in September 2009 but examination of the left knee was normal and there
was no significant underlying degenerative joint disease. Tr. 251. David Noall, M.D., found that
the [e]tiology of her current pain is not totally clear." !d.
The ALJ noted Moreland's complaints of headaches in August 2009, improved by
November with verapamil, vicodin, and zofran. Tr. 18, 242. A brain MRI showed no specific
acute abnormalities, although there were multiple white matter spots showing possible
demyelinating disease. Tr. 252. In January 2010, Moreland's treating physician, Judith Becher,
M.D., opined that Moreland had tension, not migraine headaches. Tr. 310.
Regarding depression and adjustment disorders, the record contains no significant
treatment or complaints that reflect Moreland's testimony. In September 2009 Moreland to Dr.
Becher that she was depressed over her patiner' s cheating, but a depression screen was negative.
Tr. 245-46. There are no other complaints of depression in the record.
Moreland argues that the ALJ failed to review the credibility factors set out in SSR 96-7p,
but does not point out how the ALJ violated SSR 96-7p. The ALJ considered Moreland's daily
activities, and discussed her pain and the medications that improved her symptoms. The ALJ
summarized the medical record, and reasonably found that Moreland experienced some of the
symptoms she described, but that the intensity, persistence, and limiting effects were not as great
as she claimed. Tr. 18-19. The ALJ atiiculated clear and convincing reasons to find Moreland
less than fully credible.
Ill
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I
II. Medical Source Opinions
Disability opinions are reserved for the Commissioner. 20 C.F.R. §§ 404.1527(e)(l);
416.927(e )(1 ). If no conflict arises between medical source opinions, the ALJ generally must
accord greater weight to the opinion of a treating physician than that of an examining physician.
Lester v. Chafer, 81 F.3d 821, 830 (9th Cir. 1995). In such circumstances the ALJ should also
give greater weight to the opinion of an examining physician over that of a reviewing physician.
I d. But, if two medical source opinions conflict, an ALJ need only give "specific and legitimate
reasons" for discrediting one opinion in favor of another. Jd. at 830. The ALJ may reject
physician opinions that are "brief, conclusoty, and inadequately suppotied by clinical findings."
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
A. Judith Becher, M.D.
Dr. Becher was Moreland's treating physician from August 2007 through at least June
2011. In April 2011, Dr. Becher completed a form prepared by counsel in which she listed
diagnoses of cervical stenosis, knee arthritis, migraines, and depression. Tr. 335. She opined
that Moreland's symptoms would frequently to vety frequently interfere with attention and
concentration. Tr. 336. Dr. Becher opined that Moreland could stand less than two homs in an
eight-hour workday; sit two hours at a time; could not twist, stoop, crouch, or climb stairs, and
could not be exposed to cold or fumes. Tr. 337-38. Dr. Becher concluded that Moreland would
miss four or more days of work each month and that her ability to work eight hours a day and
maintain a notmal work pace was poor. Tr. 335,340.
Dr. Becher's opinion was contradicted by the State agency non-examining physicians.
Tr. 220-33. The ALJ noted that Dr. Becher's treatment records contained little or no objective
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evidence in support of the assessed limitations. Tr. 19. The record does not contain an MRI or
other basis for the diagnosis of cervical stenosis. There is no record of Moreland complaining of
back pain. Dr. Becher noted in August 2007, that Moreland "walks without pain." Tr. 203. Dr.
Noall was unable to identifY the source of Moreland's left knee pain. Tr. 251.
The ALJ noted that Dr. Becher opined in August 2009 that Moreland was capable of
working at a low stress job. Tr. 18, 325. As discussed above, Dr. Becher noted improved
headaches with medication, and questioned whether they were tension in origin. Tr. 242-43,
310-11. Dr. Becher diagnosed adjustment disorder, but not depression, and the record reflects
only one complaint of depression. Tr. 246-47.
The ALJ concluded that Dr. Becher largely based her opinion on Moreland's subjective
complaints. Tr. 19. This opinion may be properly discounted where the record suppmis the
ALJ's dete1mination that the claimant is not fully credible. Tonapetyan v. Halter, 242 F.3d 1144,
1149 (9'11 Cri. 2001). Dr. Becher's treatment notes show largely normal physical examinations
and findings. The ALJ offered clear and convincing reasons to discount Dr. Becher's opinion.
B. Katrina McAlexander, P.M.H.N.P.
The ALJ must consider opinions from "other sources" to determine the severity of a
claimant's impairments and how they affect his or her ability to work. SSR 06-03p.
In December 2010, Ms. McAlexander completed a fmm provided by counsel in which
she stated that she had been treating Moreland for three years, and that the diagnosis was
depression and psychosis. Tr. 316. Ms. McAlexander assessed a cunent GAF of 35, and stated
that the highest GAF in the past year was 45. She stated that Moreland's stamina, pace,
drowsiness, and cognitive problems would limit her ability to work, including missing four or
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more workdays each month. Tr. 316, 320. Ms. McAlexander checked boxes to indicate that
Moreland was extremely limited in 15 out of 16 mental abilities and aptitudes needed for
unskilled work. Tr. 320-21. Ms. McAlexander opined that Moreland had marked limitations in
social functioning and daily activities, and "constant" limitations in concentration, persistence
and pace and in episodes of decompensation. Tr. 322. None of Ms. McAlexander's treatment
notes are in the record.
The ALJ gave Ms. McAlexander's opinion "vety little weight," reasoning that the record
contained little evidence of psychological diagnosis or treatment. Tr. 20. The ALJ noted that the
medical evidence, and Moreland's own testimony, do not support the extensive extreme
limitations endorsed by Ms. McAlexander. The ALJ properly noted that Ms. McAlexander's
report was based on Moreland's discredited subjective complaints.
The ALJ properly evaluated the medical source opinions and substantial evidence
supports his decision to discount Dr. Becher and Ms. McAlexander's opinions.
III. Duty to Develop the Record
The ALJ in a social security case has an independent " 'duty to fully and fairly develop
the record and to assure that the claimaot's interests are considered.' "Smolen, 80 F.3d at 1288
(quoting Brown v. Heckler, 713 F.2d 441,443 (9'h Cir. 1983)). This duty extends to the
represented as well as to the unrepresented claimant. I d. The ALJ' s duty to develop the record
fully is also heightened where the claimant may be mentally ill and thus unable to protect her
own interests. Higbee v. Sullivan, 975 F.2d 558, 562 (9'h Cir. 1992). Ambiguous evidence, or
the ALJ' s own finding that the record is inadequate to allow for proper evaluation of the
evidence, triggers the ALJ's duty to "conduct an appropriate inquiry." Smolen, 80 F.3d at 1288.
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The ALJ may discharge this duty in several ways, including: subpoenaing the claimant's
physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping
the record open after the hearing to allow supplementation of the record. Tidwell v. Apfel, 161
F.3d 599, 602 (9'h Cir. 1998).
Moreland argues that the ALJ erred by failing to order a psychological consultative exam.
However, it is the claimant's burden to provide evidence of the claimed disability. 42 U.S.C.§
423(d)(5). The evidence is not ambiguous- there is no evidence of mental impairments or
psychosis except the f01m prepared by counsel. The ALJ properly found this evidence deserved
little weight as it is contradicted by the vast majority of the medical record and Moreland's own
testimony.
Similarly, Moreland argues that the ALJ ened by failing to further explore Moreland's
cervical stenosis, abn01mal brain MRI, and left knee issues. The evidence is not ambiguous.
There is no evidence of cervical stenosis. The brain MRI did not detect any acute intracranial
abn01malities. Tr. 252. The x-ray of Moreland's left knee showed only minimal degenerative
changes, and Dr. Noall was unable to determine the sourceofMoreland's alleged pain. Tr. 251.
The evidence provided an adequate basis for the ALJ' s determination.
IV. Adequacy of the Hypothetical Question
Social Security Rule 96-Sp, entitled "Policy Interpretation Ruling Titles II and XVI:
Assessing Residual Functional Capacity in Initial Claims," addresses assessment of a claimant's
RFC. SSR 96-Sp (available at 1996 WL 374184). The Ruling defines the RFC assessment and
instructs the ALJ to make findings in construing a claimant's RFC. The Ruling also instructs the
ALJ to consider "all relevant evidence" in making RFC findings, and to address the claimant's
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exertional and nonexertional capacity. Jd. at *5-6 .
A claimant's RFC is an assessment of what a claimant
can do in a work setting despite
found that the claimant retained the RFC for
her mental or physical impairments. Here, the ALJ
ling , crouching, and crawling. She can
light work, with occasional climbing, stooping, knee
frequently balance, but should avoid concentrated expo
sure to temperature extremes and fumes,
work. Tr. 17.
odors, dusts, and gases. She can perform only unskilled
uss" whether Moreland is capable
Plaintiff argues that the ALJ failed to "assess" and "disc
s a day, 5 days a week. However, an RFC
of working on a regular and continuing basis for 8 hour
is an assessment of the sustained, work-related phys
ical and mental activities the claimant can
limitation
still do on a regular and continuing basis despite her
s. 20 C.F.R. § 416.920(e); see
1 ("A 'regular and continuing basis ' means
also SSR 96-8p, available at 1996 WL 374184, at*
ule.").
8 hours a day, for 5 days a week, or an equivalent sched
Plain tiff contends that the ALJ' s step 3 finding that
she has moderate difficulties in
the limitations identified by the ALJ at
concentration was not included in the RFC. However,
assessment, but "are used to rate the
step two in the "paragraph B" criteria are not an RFC
severity of mental impainnents at steps 2 and 3 of the
sequential evaluation process. Tr. 17
t to any credible medical evidence
(citing SSR 96-8p. Moreover, the plaintiff fails to poin
persistence, and pace. Dr. Becher said her
supporting her alleged impailments in concentration,
she was capable of low stress work. Tr. 337.
symptoms would impair her concentration, but that
unted by the ALJ. The ALJ based his RFC
327. Ms. McAlexander's opinion was properly disco
on a consideration of the entire record and the determina
substantial evidence.
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tion of Moreland's RFC is supported by
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V. Substantial Evidence Support's the ALJ's Step Five Determination
For the reasons set out above, the ALJ's hypothetical question to the VE accurately
reflected the limitations in the RFC finding, and therefore the ALJ conectly relied on the VE's
response to that question in concluding that Moreland was not disabled at step five.
CONCLUSION
For the above reasons, the Commissioner's decision is affitmed and this matter is
dismissed.
IT IS SO ORDERED.
Dated this k
day ofNovember, 2012 .
. JAMES ARE DEN
\United States District Judge
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